IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA. STATE OF ALABAMA, ) ) ) ) v. ) CASE NO. CC ) ) ) FELIX BARRY MOORE, ) ) Defendant.

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1 IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA ELECTRONICALLY FILED 7/31/2014 3:20 PM 43-CC CIRCUIT COURT OF LEE COUNTY, ALABAMA MARY B. ROBERSON, CLERK STATE OF ALABAMA, v. CASE NO. CC FELIX BARRY MOORE, Defendant. STATE S RESPONSE TO DEFENDANT S MOTION FOR DISCLOSURE OF GRAND JURY TRANSCRIPT The State of Alabama hereby submits its Response to defendant Felix Barry Moore s ( Moore Motion for Disclosure of Grand Jury Transcript. To the extent Moore s Motion requests a copy of his grand jury transcript, this request is moot because a certified copy of the official transcript of Moore s grand jury testimony has already been provided to the defense. Moore s requests for the transcripts of all other witnesses who have appeared (or will appear before the Lee County Special Grand Jury is likewise due to be denied. 1. Without citing any Alabama cases, Moore makes the simply astonishing assertion that he is entitled to obtain the grand jury transcripts of the testimony of each and every witness that appeared before the Lee County Special 1

2 Grand Jury. To be sure, Moore concedes that the State s production of such material is not an ordinary procedure. (Motion, p. 2, Essentially, Moore s legally unsupported argument is based on his assertion that he is entitled to review the grand jury transcripts to search for possible exculpatory evidence which negates the materiality of Moore s false testimony. The United States Supreme Court, however, has made it absolutely clear that such procedure is improper: A defendant's right to discover exculpatory evidence does not include the unsupervised authority to search through the [State]'s files. Although the eye of an advocate may be helpful to a defendant in ferreting out information, this Court has never held even in the absence of a statute restricting disclosure that a defendant alone may make the determination as to the materiality of the information. Settled practice is to the contrary. In the typical case where a defendant makes only a general request for exculpatory material under Brady it is the State that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court's attention, the prosecutor's decision on disclosure is final. Defense counsel has no constitutional right to conduct his own search of the State's files to argue relevance. Pennsylvania v. Ritchie, 480 U.S. 39, (1987 (internal citations omitted (emphasis added. 3. Moreover, the Alabama Rules of Criminal Procedure clearly delineate the scope of the materials in the prosecution s case file to which Moore is entitled. See generally, Rule 16.1, Ala. R. Crim. P. There is simply no provision under the 2

3 Rules of Criminal Procedure or applicable caselaw that would permit the defense to peruse the State s case file. 4. The Alabama Grand Jury Secrecy Act would also certainly prohibit such an invasive intrusion upon the secrecy of the Lee County Special Grand Jury s continuing investigation. 1 See , Ala. Code (1975 ( it is essential to the fair and impartial administration of justice that all grand jury proceedings be secret and that the secrecy of such proceedings remain inviolate. ; Steward v. State, 314 So.2d 313, 315 (Crim. App ( The long time rule, sanctioned by our courts, is that the proceedings before a grand jury are essentially secret.. 5. Indeed, courts in Alabama have only recognized one limited exception to allow the defense to obtain the transcript of a grand jury witness testimony. See McKissack v. State, 926 So. 2d 367, 370 (Ala ( [T]he general rule governing the secrecy of grand-jury proceedings is subject to a limited exception upon a defendant's showing of a particularized need. This exception, however, does not apply until after a witness has testified at trial. McKissack, 1 Any information about law enforcement operations or investigations is also protected from disclosure by the law enforcement investigation privilege. See (b, Ala. Code (1975 ( Law enforcement investigative reports and related investigative material are not public records. Law enforcement investigative reports, records, field notes, witness statements, and other investigative writings or recordings are privileged communications protected from disclosure. (emphasis added.; Rule 508, Ala. R. Evid.; see also United States v. Winner, 641 F. 2d 825, 831 (10th Cir ( The law enforcement investigative privilege is based primarily on the harm to law enforcement efforts which might arise from public disclosure of [investigations].. 3

4 926 So. 2d at 371. Accordingly, Moore cannot obtain the transcript of a grand jury witness testimony prior to trial. See Millican v. State, 423 So.2d 268, (Ala.Cr.App ( Before a defendant is allowed to inspect a transcript of a State's witness who testified before the grand jury or before a trial judge should conduct an in camera inspection of such testimony, the defendant should at least and at a very minimum make some offer of proof (1 that the matters contained in the witness' grand jury testimony were relevant to the subject matter of the prosecution; (2 and that there exists an inconsistency between grand jury testimony and trial testimony. Unless defense counsel is merely going on a fishing expedition, he will have some information as to the particular inconsistency in the defendant's testimony. (internal citations omitted As such, Moore s argument is not only without any legal support, but it is also expressly contrary to established law. Accordingly, the motion is due to be denied. In accordance with the foregoing, the State of Alabama respectfully requests that this Court enter an Order denying defendant Felix Barry Moore s Motion for Disclosure of Grand Jury Transcript. 2 As discussed above, if the State determines that the transcript of a grand jury witness testimony contains exculpatory or impeachable material prior to trial, then the State would satisfy its constitutional obligations through production of the transcript. The pre-trial determination of this issue, however, is made solely by the State and its determination is final. 4

5 Respectfully submitted this 31 st day of July W. VAN DAVIS ACTING ATTORNEY GENERAL OF COUNSEL: W. Van Davis Acting Attorney General rd St. North Pell City, AL /s/ Michael B. Duffy Michael B. Duffy Deputy Attorney General Miles M. Hart Chief, Special Prosecutions Division OFFICE OF THE ATTORNEY GENERAL STATE OF ALABAMA 501 Washington Avenue P.O. Box Montgomery, AL ( ( FAX 5

6 CERTIFICATE OF SERVICE I hereby certify that I have, this the 31 st day of July 2014, electronically filed the foregoing using the AlaFile system which will send notification of such filing to the following registered persons, and that those persons not registered with the AlaFile system were served a copy of the foregoing by U. S. mail: Gregory B. McCain, Esq. P.O. Box 1331 Dothan, Alabama ( Office ( Fax gmccain@graceba.net Derek E. Yarbrough, Esq. Motley Motley & Yarbrough, LLC 117 East Main Street Dothan, Alabama ( Office ( Fax motley@graceba.net William J. Baxley, Esq. Joel E. Dillard, Esq. Baxley, Dillard, Mcknight & James 2008 Third Avenue South Birmingham, AL Telephone: Telecopier: BBaxley@BaxleyDillard.com JDillard@BaxleyDillard.com /s/ Michael B. Duffy Deputy Attorney General 6